28 January 2003

Asia Report N45

Kabul/Brussels

1. The Court System ......................................................................................................9

2. The Supreme Court and the Chief Justice ...............................................................10

Afghanistan’s legal system has collapsed. Never

strong to begin with, it has been nearly destroyed by

23 years of conflict and misrule. There are few

trained lawyers, little physical infrastructure and no

complete record of the country’s laws. Under

successive regimes, laws have been administered for

mostly political ends with few protections of the

rights of individuals to a fair trial. Although the

country has signed up to most international

agreements on human rights, abuses have been

widespread, and military commanders have enjoyed

impunity.

The challenges in remedying the situation are

enormous. No justice system can thrive in a state of

insecurity and corruption since judges and

prosecutors will be intimidated or bribed. There are

deep divisions between those who favour a very

conservative interpretation of Islamic law and those

who want to revive the more progressive ideas in

the 1964 Constitution. The loss of trained staff has

been such that it will take a generation at least to

rebuild a system that even before the conflict only

really functioned in the main cities and towns.

Nevertheless, moving towards the rule of law is a

vital part of peace building in Afghanistan. Abuses

of ethnic and religious groups and the treatment of

women suggest that no group can feel secure unless

protected by a body of law and a functioning

judicial system. The economy will be more likely

to grow if property is protected; a fair system to

adjudicate the many property disputes that have

stemmed from war will be vital if this is not to

become a new source of grievance and conflict. A

functioning judicial system will also be essential

for dealing with drug production. The country will

likewise have to find a way of addressing past

human rights abuses if it is to gain a durable peace.

The Bonn Agreement signed in December 2001 reestablished

the 1964 Constitution as Afghanistan’s

key legal document and laid out a plan to rebuild the

system. That plan called for the establishment of

independent commissions to oversee the rebuilding

of the judiciary, monitoring of human rights, drafting

of the constitution and selection of civil servants.

These bodies were to provide both expertise and

some measure of oversight to a government in which

executive and legislative powers are concentrated in

the hands of the president and his cabinet.

So far the commissions have achieved little. Most of

those named to the first Judicial Commission were

linked either to ministries or the Supreme Court.

That commission bogged down in bureaucratic and

political rivalries and was disbanded after three

months. A new commission, appointed in November

2002, appears more independent but begins with an

ill-defined mandate and is handicapped by the fact

that several critical laws were drafted or adopted in

the intervening months. The Human Rights

Commission has been more successful but faces

formidable security concerns, which the Transitional

Administration and the international community

have not adequately addressed, and has been delayed

in establishing a nation-wide presence. The Civil

Service Commission is not yet functioning.

The commissions were an obvious channel for

international technical and financial assistance, and

the delay in establishing them has meant many lost

opportunities. Their performance to date does not

bode well for the future since they will have to

tackle even more thorny issues such as disarming

military forces, writing a new constitution and

managing elections due in 2004.

While the international community has dithered on

judicial development, the factions within the

Transitional Administration that control the judiciary

have moved swiftly to promote their interests. The

Supreme Court is controlled by Fazl Hadi Shinwari,

an ally of the Saudi-backed fundamentalist leader

Abd al-Rabb al-Rasul Sayyaf. Shinwari was

appointed in December 2001 by former president

Burhanuddin Rabbani. President Hamid Karzai reappointed

him in June 2002, much to the surprise of

many as the constitution requires that a Chief Justice

be under 60, while another provision has been

interpreted as requiring that the Chief Justice be

educated in all sources of Afghan law, religious and

secular. Shinwari is believed to be in his 80s and

does not have formal training in secular sources of

law.

Shinwari has rapidly placed political allies in key

positions, even expanding the number of Supreme

Court judges from nine to 137. Of the 36 Supreme

Court judges whose educational qualifications are

known, not one has a degree in secular law.

Shinwari’s actions, together with the re-emergence

of a ministry to promote Islamic virtue, have added

to fears that the judicial system has been taken over

by hard-liners before the Afghan people have had a

chance to express their will in a democratic

process. The Supreme Court has also established

new National Security Courts that will try terrorist

and other cases although it is unclear whether it had

the right to create courts that are not mandated in

law.

Tensions have emerged between the Supreme

Court Chief Justice and the Minister of Justice,

whose ministry drafts laws and who under the Law

of Saranwal (Attorney General or Public

Prosecutor), is the country’s chief prosecutor.

Although the Attorney General was established as a

separate office in the 1980s, the Minister of Justice

disputes the constitutionality of this move.

The United Nations has done little to press

accountability for past human rights abuses as senior

figures believe it is more important to consolidate the

peace process. Donors have been slow to embrace

the issue – at the Tokyo conference there were no

specific commitments. President Karzai has

dismissed transitional justice as a “luxury” the

country cannot afford until it is more settled. But

taking justice for past crimes off the agenda has

almost certainly contributed to a sense among

commanders that they can act as they wish with no

risk of punishment. Human rights abuses by

commanders, many officially part of the government,

continue across the country.

Most advocates for a process of transitional justice

recognise the difficulties but believe that training

and resources need to flow into the country now so

that Afghans can eventually make informed

decisions about which mechanisms might best

address past abuses and help end the cycle of

impunity. Training lawyers and investigators,

protecting evidence and establishing archives are

all essential if Afghans are to choose in the future

from an array of possibilities that includes trials of

abusers and a truth and reconciliation commission.

Many difficult decisions about what to include and

where to draw geographical or temporal boundaries

can be put off until peace is more established but

unless the international community builds a

capacity among Afghans to deal with the issue

themselves, all choices could be lost for good.

Rebuilding the justice system needs to move higher

up the political agenda. The process requires

conspicuous support from the United Nations and

full implementation of the Bonn Agreement, which

offers a mechanism to build a new justice system.

Donors need to provide technical and financial

support in a timely manner to ensure that

Afghanistan develops a legal system that serves and

protects all its people and reduces the risks of a

return to conflict.

1. Request the retirement of Fazl Hadi Shinwari

as Chief Justice and appoint a successor who

meets the constitutional requirements on age

and education.

2. Issue a decree affirming the independence of

the new Judicial Commission, giving it the

authority to issue binding recommendations,

and establishing a formal process whereby the

Commission will report on its work to the

President.

3. Protect members of the Human Rights and

Judicial Commissions, when requested, to

ensure they are not intimidated.

4. Issue a decree clarifying the constitutional status

of the Attorney General’s office, on the basis of

the Judicial Commission’s recommendation.

5. Disband the National Security Courts and halt

establishment of any new courts or justice

related bodies until these can be reviewed by

the Judicial Commission.

6. Establish the membership of the Civil Service

Commission, as mandated by the Bonn

Agreement, ensure that it has a secretariat

staffed by independent experts to set

appointment standards, and encourage it to

review all appointments made since the

signature of the Bonn Agreement.

7. Suspend use of the death penalty at least until

defendants are guaranteed due process.

8. Give serious consideration to and indicate

whether the Commission supports the

establishment of a UN-mandated International

Commission of Inquiry to document crimes

against humanity committed during the past 24

years, as proposed by the UN Special

Rapporteur on Extra-judicial, Summary or

Arbitrary Executions.

9. The Italian government should ensure that funds

pledged during the 19-20 December 2002

Conference of Rome on Justice in Afghanistan

are expeditiously channelled.

10. Raise the public profile of efforts to promote

the rule of law and human rights by offering to

expand technical and financial support to all

the commissions provided for in the Bonn

Agreement.

11. Ensure that technical and financial assistance is

provided to all sectors of the government and

civil society involved in the administration of

justice and law enforcement, and coordinate

such assistance so as to ensure the parallel

development of each sector, including:

(a) courts, the public prosecutors and judges;

(b) local traditional institutions for resolving

disputes;

(c) the police; jails and other detention and

correction facilities;

(d) the institutions drafting new laws,

procedures and codes;

(e) law faculties, libraries and other facilities

for legal education; and

(f) the Afghan Human Rights Commission

and any regional branches that it may

establish; and human rights and legal aid

NGOs, bar associations and other elements

of civil society.

12. Support the consultative process on transitional

justice to be undertaken by the Human Rights

Commission by:

(a) helping Afghanistan benefit from the

similar experiences of other countries;

(b) providing expert and technical help to

enable Afghans to organise consultations

and design a way to account for past

crimes that fits the situation in the country;

(c) providing assistance for the collection and

preservation of evidence of human rights

abuses by the United Nations and other

groups; and

(d) providing sufficient funding for a

widespread public information campaign

on the consultation process to ensure that

expectations are reasonable.

13. Express readiness to support establishment of

a UN-mandated International Commission of

Inquiry to document those war crimes and

other violations of international humanitarian

law, since April 1978, that are serious enough

to warrant consideration as crimes against

humanity and thereby assist the Human

Rights Commission’s consultative process on

transitional justice.

14. Provide, where deficiencies are identified in the

existing record, such an International

Commission of Inquiry with financial support,

channelled through a trust fund, to carry out

investigations as thoroughly as possible in view

of the passage of time, to include, as necessary,

support for the provision of:

(a) forensic specialists and other technical

assistance;

(b) security for sites believed to contain graves

and other material evidence; and

(c) security for witnesses and their families

believed to be at acute risk of retaliation.

15. Condemn forcefully ongoing human rights

violations, press for accountability and publicly

name commanders who are persistent abusers

of human rights.

16. Support the rebuilding of law libraries and

translation of foreign law texts, and make

available foreign faculty to teach courses on

international human rights law.

17. Work urgently with the Transitional

Administration in connection with security

sector reform to develop human rights

guidelines on the selection of officers and new

codes of conduct for the military and police.

Afghanistan’s judiciary, like every other institution

in the country, is in a shambles after 23 years of war.

Successive regimes imprisoned or executed scholars

of Islamic law and Western jurisprudence, drove

others into exile, or banned them from practising

their profession. The years of fighting have left the

country without any complete set of its own laws

and codes; law libraries have been burned and

ransacked and land registers lost or manipulated.

For years, secret police answering to communist,

mujahidin or Taliban intelligence agencies carried

out arrests and summary proceedings without

pretence of due process. Political detainees have

filled the country’s jails, from the notorious Pul-i-

Charkhi prison outside Kabul in communist times

to the shipping containers used today by individual

commanders.

The Bonn Agreement, signed by the main political

factions in December 2002, identified legal reform

and the rule of law as key elements to peace building

in Afghanistan. It established its own terms and the

Constitution of 1964 as the fundamental legal

documents and set up a number of commissions to

lead the process. UN officials, representatives of

donor countries and Afghan leaders all identified

judicial development as a vital step in peacebuilding.

As the rule of law underlies every reconstruction

project planned or underway, it must be a central

priority for the government and donors. Afghan and

UN officials have described the reform process as

encompassing a wide range of activities: review of

the 1964 Constitution and existing laws; drafting of

new laws; training of judges, lawyers and police;

building of prisons and refurbishing of offices; and

initiation of accountability for past human rights

abuses.

Likewise, the goals of judicial reform intersect such

vital elements as constitutional development,

legislative reform, expansion of civil society and

development of human rights institutions and their

protection and education capacities. Genuine

security for Afghans will depend on whether their

country becomes one where those in power govern

not by decree but by law, where police do not

answer to one political leader or warlord but are

accountable to legal institutions and ultimately to

the citizens, and where those citizens understand

they have rights under the law, and there are

consequences for those who violate those rights.

If the rebuilding of Afghanistan’s economy is to

succeed, investors must feel secure that their assets

are protected under the law, while donors and

citizens alike must be able to trust that assistance

will not be eaten away by corruption.

If abusive institutions and individuals are shielded

from effective judicial scrutiny, donors may

reasonably be unwilling to direct assistance where

it is needed most – precisely at those institutions

perilous to neglect the more difficult challenges of

redrafting and monitoring criteria for judicial

appointments, retraining the police, rebuilding and

reforming corrections facilities, and confronting

abusive authorities.

A sustained commitment is essential. The reform

process must be dedicated to building and

strengthening Afghan institutions that can carry on

the reform effort. In addition to the government’s

judicial institutions – the courts, Ministry of Justice,

and prisons – those involved must look to ways to

rebuild bar associations and other associations of

Perspectives: Foreign Aid to the Justice Sector”, (Geneva,

judges and lawyers, particularly those for women

judges and lawyers, who have been cut out of the

system for so long and whose participation will be

vital in order to address entrenched discrimination.

The ultimate test of judicial reform is whether it

benefits those “whose rights are in jeopardy” and

Judicial reform efforts must not be divorced from

the overall security framework. But little has been

done to confront the political obstacles, in both

Kabul and the provinces, that threaten any serious

effort to rebuild the judiciary. The factionalism that

whole also impedes the functioning of the judicial

system.

Each of the three major components of the judicial

system – the Ministry of Justice, the Supreme Court,

and the Attorney General’s office – is dominated by

rival political or ideological camps which, while

sharing an Islamic background, have been unable to

define a common set of objectives. Many provincial

judges were appointed or confirmed by the militias

that are now dominant in their areas, and are often

simply madrasa-educated mullahs. Resolving the

internal disputes within the judicial system and

professionalising the judiciary will require confronting

powerful political actors and should proceed in

tandem with demobilisation and disarmament.

Under the Bonn Agreement, the 1964 Constitution

provides authoritative guidance until a new

constitution is drafted. Finding the right balance

between Western jurisprudence and Islamic law has

been a challenge for Afghanistan’s legal community

since well before the Soviet occupation and

subsequent civil wars. The Judicial Commission will

need to embrace both traditions.

Rebuilding the justice system also raises the issue of

how to address the war crimes and crimes against

humanity that occurred during the decades of

conflict. Transitional justice is always difficult but it

should not be swept aside. Speaking at the Loya

the Bonn Agreement in December 2001 until the Loya Jirga

in June 2002 were known collectively as the Interim

Authority. Subsequently, the government has been referred

to as either the Transitional Administration or the

Transitional Authority. For consistency and simplicity, it is

referred to in this report as the Transitional Administration.

Jirga in June 2002, President Hamid Karzai told

delegates that “we must have peace, stabilise peace,

make it certain, make it stand on its own feet and

then go for justice. But if we can have justice while

we are seeking peace we’ll go for that, too”. This

realistic assessment was undercut later in the same

speech when he said: “So… justice becomes a

luxury for now. We must not lose peace for that”.

Justice – in terms of an accounting for the past and

legal protections for the present – is not a luxury. It

is a vital component of any lasting peace and durable

reconstruction and so should be a priority for the

Transitional Administration and the international

community.

This report examines key issues relating to the

development of the rule of law in Afghanistan,

including transitional justice as part of peacebuilding.

It surveys events since the Bonn Agreement was

signed in December 2001 and assesses some of the

successes and failures in the development of a justice

system.

Many other issues, particularly those relating to the

writing and approval of a new constitution and

selection of an electoral system, will be dealt with

in a future report. Most Afghans still have deep

concerns about their security if they speak out in

public in a critical manner. For that reason most of

the Afghan sources cited in this paper are

anonymous.

Before the quarter century of conflict from which

Afghanistan is now emerging, its legal institutions

and legal elites fell into two divided camps: those

that drew on Islamic jurisprudence and those that

were based in Western secular law.

The introduction of secular law began with

independence in 1919. In 1923, King Amanullah

gave the country its initial constitution, which

defined for the first time Afghan citizenship and

described the attached rights. In a pattern that would

be repeated by his successors, Amanullah’s efforts to

modernise the state brought him into conflict with

local, tribal leaders. He courted foreign aid and

foreign ideas to reform education, while cutting

government allowances to tribal leaders. He also

attempted to increase government supervision of the

judiciary by establishing licensing requirements for

Shah, employed a less confrontational approach,

giving religious and tribal leaders a role in reviewing

Foreign assistance continued to be vital in education,

however. Kabul University was founded with

considerable foreign aid; each faculty had a foreign

sponsor that provided financial support, professors,

Political Science had French help; al-Azhar

But foreign aid also deepened divisions between

Islamic and Western law. In theory, “secular law

[was] expected to be in harmony with Sharia law and

leaders in the administration, particularly the abolition of

government allowances, lost him crucial support. After a

series of revolts he was forced into exile in January 1929.

Haven, 1996), pp. 55-58.

(national assembly) from among its own members. In practice,

the Council “simply rubber-stamped Cabinet proposals”.

had degrees from al-Azhar, and two-thirds of those in the

Faculty of Law and Political Science had degrees from French

universities”. Presaging its current role, West Germany

sponsored the Police Academy. Ibid., p. 70.

to supplement it, and both overlay indigenous tribal

history, however, the two formal systems have been

at odds. Jurists trained in Western law have seldom

Another and perhaps greater gulf has divided urban

and rural society and the bases of authority in each.

Afghan rural society also has a long history of

resisting interference from a centralising state. In

most of the country outside larger urban areas,

traditional institutions for resolving disputes have

largely relied on elders and other influential people.

Throughout the country such institutions are

seek to have a dispute resolved, including such

crimes as murder and theft, they must first agree to

subsequently fail to do so, they risk being cast out

Central government courts are generally not permitted

to interfere in tribal disputes but the relationship

between local institutions and urban-based formal

legal institutions is not necessarily oppositional. In

some cases, deciding which should adjudicate a

particular dispute depended on whether the parties

believed they stood to benefit more from one than

the other. However, particularly in tribal areas, the

blood feud has remained “the main institution for the

The reforms of the 1960s reflected the changes that

had been wrought by the expansion of Afghanistan’s

educational system and the creation of new educated

urban elites who wanted to shape political change in

the country. The New Democracy period, as it came

to be known, included a new Constitution, which

had been debated by representatives to a Loya Jirga

convened in Kabul by the king, Zahir Shah, in 1963.

The drafters drew on the U.S. Bill of Rights and the

Universal Declaration of Human Rights to include

guarantees for fundamental freedoms, including

speech, association, and press, and due process. The

International Journal of Middle Eastern Studies, 12 (1980),

p. 39.

constitution also stipulated an independent judiciary

The major flaw in the reform effort was with

respect to political participation. Although parties

could organise, Zahir Shah never signed legislation

allowing them to contest elections. The government

apparently feared that giving them access to power

bicameral consultative parliament could debate

legislation and advise the king but not hold him or

his government accountable. The reforms fostered,

in effect, “a rudimentary civil society” but not the

political institutions that could challenge state

power. Activists of various stripes could express

their views within certain limits but not threaten the

Two major movements emerged out of the newly

educated elite: the communists, who founded the

and the Islamists, who launched their own movement

at about the same time to counter growing foreign,

particularly communist, influence at the university

is no accident that among the early mujahidin leaders

were several professors in the Sharia Faculty at Kabul

University, including Burhanuddin Rabbani and

Ghulam Rasul (now Abd al-Rabb al-Rasul) Sayyaf.

several occasions in the 1960s when it was called on to

adjudicate disputes between government ministries and the

legislature. ICG interview with Afghan lawyer, Washington,

D.C., May 2002.

and Khalq (masses). Although they united for the purposes

of the coup, the leading Khalqis soon purged the new

government of Parchamites only to be ousted by the

Soviets and replaced by the Parchamites.

fled to Pakistan after Daoud’s coup. In June 1992, he became

president of the Islamic State of Afghanistan. Sayyaf was

imprisoned by Daoud, narrowly escaped execution after the

1978 revolution and was finally released during the brief

amnesty that followed the Soviet invasion. He, too, fled to

Pakistan where he attracted support from Saudi Arabia and

Rubin, op. cit., pp. 83, 221.

Khan, seized power, bringing the monarchy to an

end. Daoud had relied on support from the Parcham

(“flag”) faction of the PDPA in carrying out the

coup. But he soon distanced his government from

the Soviet Union, instead courting Iran for support

and advice on setting up a secret police. He cracked

down on the Islamists, jailing many and driving

others into exile in Pakistan where they began to

organise for armed resistance. Within a few years, he

had banned all political organisations except his own

While Zahir Shah had striven to bring limited

democratic reform to Afghanistan, Daoud

emphasised economic development and the social

and economic discipline that would be required to

achieve it – including limitations on freedom of the

press and other rights guaranteed under the 1964

largely seen as a rubber stamp, he promulgated a

new constitution to provide the basis for a one-party

ratified, however; the PDPA overthrew Daoud on

28 April 1978.

The reforms of the 1960s had little impact in the

countryside, where traditional moral authority

remained vested in the mullahs and khans (tribal

leaders and landowners). Zahir Shah’s government

made no effort to challenge agrarian relations or this

rural power structure. During the New Democracy

period and under Daoud alike, tribal leaders

participated in Loya Jirgas but were largely left alone

to manage local affairs.

After the PDPA seized power, however, one of its

aims was to take over the legal institutions and use

them to carry out its social and political agenda to

transform society. The PDPA specifically sought to

“curb the power of local jurists and the authority of

Islamic legal reasoning through secularising

attempted to impose radical reforms by decree. Its

most controversial initiatives challenged the control

which was being drafted at the time, to strengthen the rights

of victims of crime over those of defendants. ICG interview

with Afghan lawyer, Washington, D.C., May 2002.

exerted by local religious leaders over family life and

social organisation.

By November 1978, the regime had announced new

regulations on rural land ownership and tenancy, debt,

and customs regulating marriages and bride price,

and had attempted to carry out these decrees by force.

In June 1979 the government established “popular

committees”, dominated by state bureaucrats, to

The reaction revealed how alienated the new

leadership was from rural society. The reforms

found little support in the countryside; instead, they

provided much of the motivation for revolts that

erupted almost immediately throughout the country.

Rural tribal and religious leaders joined with urbaneducated

Islamists to reject the imposition of alien

concepts of state and religion that threatened their

power.

Thousands of opponents of the new reforms – the

tribal leadership, religious leadership, intellectuals

and non-Pashtun minority leaders – were killed by

was spearheaded by the Khalq Deputy Prime

Minister, Hafizullah Amin, who had quickly become

the dominant figure in the new government.

The intensity of the opposition was not simply due to

the fact that the government had attempted to

intervene in rural society, where “local traditions

that it had employed such brutal means. Although the

government did not alter the ordinary courts or laws

governing civil and criminal procedure, it bypassed

them, employing secret police and summary

proceedings to eliminate its opposition.

The Soviet Union was prompted to intervene, on 27

December 1979, as rapidly spreading army revolts

undermined state authority. Under its occupation, all

important state institutions were modelled on their

Soviet counterparts with the principal aim of ending

resistance to the state. Soviet advisors established an

internal security agency, the State Information

named twelve thousand people purportedly killed in Kabul

prisons during this period. In response to rural uprisings the

government also engaged in such collective reprisals as the

killing of an estimated 1,170 villagers in Kerala, Kunar, on

April 20, 1979”. Rubin, op. cit., p. 115.

which reported directly to the prime minister and

carried out arrests, interrogation and torture of

political detainees suspected of supporting the

resistance. “KhAD also wielded de facto judicial

authority via the Special Revolutionary Court”,

It continued even after the completion of the Soviet

withdrawal, on 15 February 1989, renamed the

Ministry of State Security (Wizarat-i-Amaniyyat-i-

Dawlati, or WAD). Indeed, one profound legacy of

the Soviet Afghan and civil wars has been the extent

to which secret police activities and intelligence

agencies have replaced ordinary criminal

was one of the few institutions built by the Soviets

that survived their withdrawal. Much of WAD’s

intelligence apparatus, including some personnel,

continued through the mujahidin and Taliban periods.

Under the mujahidin, each party vying for power in

Kabul maintained its own intelligence department,

and carried out arrests, interrogations and summary

executions for its own purposes. Ordinary courts did

function some of the time; judges (including women)

were appointed and presided over civil, criminal and

family law cases. But real power rested with extrajudicial

proceedings that replaced due process.

Reports by the UN Special Rapporteur on

Afghanistan reflect the chaos of the early years

under the mujahidin. In 1992 and 1994, the Special

Rapporteur reported that rival factions were secretly

detaining people in houses throughout Kabul.

Ordinary courts were operating at the district and

provincial levels but could not refer cases to the

Rehman, who ruled from 1880 to 1901, created the first,

which was notorious for crushing resistance by the country’s

Haven, 2000), p. 12.

norms and procedures were reportedly not followed and …

there is no consistency in the judicial hierarchy”. Final report

on the situation of human rights in Afghanistan submitted by

Mr. Felix Ermacora, Special Rapporteur, in accordance with

Commission on Human Rights resolution 1992/68. The use

of private detention centres continued through the mujahidin